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Handful of absences not enough to prove actual disability

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Disabled employees are entitled to protection from discrimination, but they must prove that they are actually disabled under the ADA or the federal Rehabilitation Act. And that’s no easy task.

An employee must show his or her impairment is more than just a physical or mental condition. The employee must prove that it substantially impairs a major life function like walking, talking, working or breathing. Simply put, a diagnosis does not a disability make.

Recent case: Custodian Deborah Mutts, who has asthma, sued her employer after she was transferred to a job cleaning student residence halls. She said the transfer was punishment for complaining about other alleged acts of discrimination.

As proof that her condition substantially impaired a major life function such as breathing, she testified that she had been absent from her job as a custodian a total of five times over three years — all due to asthma attacks.

The 2nd Circuit Court of Appeals dismissed her case. It concluded that a few absences, even if they were due to a serious health condition like asthma, was not enough to show the condition substantially impaired either her ability to work or to breathe. (Mutts v. Southern Connecticut State University, No. 06-3387, 2nd Cir., 2007)

Final note: Don’t jump to the conclusion that an employee is disabled just because he or she has a medical condition. Millions of Americans do, and not all are disabled by their conditions. 

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